1. Introduction

More than three years have passed since the result of the Brexit referendum and the prospects of a deal remain uncertain. The United Kingdom now has a new Brexit deadline of 31 October 2019, after several unsuccessful attempts to reach a deal. The risk of a no-deal Brexit looms large and UK practitioners are well advised to prepare for this eventuality.

2. New Domestic Legislation

The UK government has already taken steps to change its domestic law, in readiness for Brexit. Article 288 of the Treaty on the Functioning of the European Union (the TFEU) requires all Member States to “adopt regulations, directives, decisions, recommendations and opinions” made by the European Union. Various EU Regulations and Directives are binding on the UK, and directly applicable. The triggering of Article 50 on 29 March 2017 started the, now extended, two-year countdown to Brexit. Once the United Kingdom leaves the European Union, it will cease to be a signatory to the TFEU, and will therefore no longer remain subject to Article 288. Without proactive steps, all aspects of EU law would cease to have force in the United Kingdom; they would simply fall away leaving a legal vacuum. The UK government needs to fill that vacuum.

In readiness for Brexit, the English government has released a draft Statutory Instrument (“The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019”) (referred to as the “Brexit SI’’ throughout this chapter), which contains extensive transitional arrangements in the event of Brexit. One amendment has been made to that already (“The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) (No. 2) Regulations 2019 No. 836”), which is discussed further below. As a result of the Brexit SI, practitioners in England and Wales are starting to form a picture of what family law in a post no-deal Brexit world will look like, at least in respect of outgoing decisions (i.e. decisions made by the courts in England and Wales in cases involving one of the remaining 27 EU Member States). In a similar fashion, the Scottish parliament has released a draft Statutory Instrument dealing with the position in Scotland following a no-deal Brexit (“The Jurisdiction and Judgments (Family, Civil Partnership and Marriage (Same Sex Couples)) (EU Exit) (Scotland) (Amendment etc.) Regulations 2019”), although, save for touching upon Brexit issues for Anglo-Scot cases, the Scottish position is beyond the scope of this chapter.

Whilst nothing is final yet, what is clear from the Brexit SI is that, in the event of a no-deal Brexit, there are a number of areas where the position will be different post-Brexit compared to the position pre-Brexit, and the need for parallel advice in other jurisdictions will become ever more important. Some (non-exhaustive) examples are set out here, which are correct at least at the time of writing (July 2019). By the time this chapter is published, further amendments may have been made to the Brexit SI or a deal may have been reached with the EU that impacts family law, and updates may be necessary.

Divorce

At present, all parts of the United Kingdom (England & Wales, Scotland and Northern Ireland) are signatories to Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“Brussels IIa’’) by virtue of being Member States of the European Union. Article 21 provides for there to be automatic recognition in all Member States of divorce, legal separation or marriage annulment orders, with the limited grounds for non-recognition set out in Article 22.

By virtue of Brussels IIa, we have a harmonised set of rules across the European Union on jurisdiction, with a procedure stipulated in the event that there are competing jurisdictions. Whilst the lis pendens rule is controversial, there is at least a uniform criterion for jurisdiction across all Member States, and we know what should happen in the event two competing jurisdictions are seized by both parties.

Post-Brexit, the United Kingdom will cease to be a signatory of Brussels IIa and the jurisdiction criterion will cease to apply. The Brexit SI seeks to adopt the jurisdiction criterion for jurisdiction (save that joint applications are not currently possible in England and Wales), with an additional ground of “sole domicile”. In the event of a no-deal Brexit, from a UK perspective, the lis pendens rule will end and forum cases will be decided in the same manner as cases with non-EU forum disputes, namely on the basis of forum non conveniens. The Brexit SI expressly provides for this. Whilst some practitioners may rejoice at the end of the lis pendens rule for UK-EU cases (a practice which can lead to arbitrary and unfair decisions), the strain that a removal may place on the already stretched UK courts is a concern. Until test cases come through the courts in the post-Brexit era (assuming no deal), it is difficult to say whether the return to forum non conveniens will see increased court time and cost, as parties examine every connecting factor with the competing Member States. Many practitioners fear that it will lead to lengthier trials, as evidence of fact is examined, longer witness statements and therefore, higher costs. In particular for courts dealing with litigants in person, disputes could become very burdensome both of the courts and the parties.

At present, UK divorces are recognised throughout the European Union automatically by virtue of Brussels IIa. On Exit Day, this will cease to apply, and reference will need to be made to the 1970 Hague Convention. Presently, however, only 12 of the remaining EU Member States are signatories to the 1970 Hague Convention. Whilst local advice should always be taken, it is considered that these 12 Member States are likely to recognise UK divorces. The 15 EU Member States who are not signatories present more uncertainty, although politically, it is difficult to see why those Member States would cease to recognise civil UK divorces, as they have recognised them for so many years. At the risk of sounding repetitive, however, early local advice, in parallel, will be crucial.

Same-sex marriages

Only 14 of the remaining 27 Member States allow same-sex marriage, with seven countries actually banning same-sex marriage in their constitutions. Only 13 of the 27 remaining Members States recognise civil partnerships. Currently, under EU law, same-sex marriages are likely to be recognised. After Exit Day, it is not clear if same-sex couples will benefit from this protection. From an outgoing perspective (i.e. cases going out of the UK), it is thought that divorce arising from same-sex marriages should be covered by the 2007 Hague Convention. Civil partnerships, however, do not appear to be covered.

Maintenance

Currently, the United Kingdom applies the “Maintenance Regulation” (Council Regulation (EC) No 4/2009). On Exit Day, the Maintenance Regulation will cease to apply to the UK. As the United Kingdom loses the Maintenance Regulation, so too does it lose the sole domicile restriction. Article 3 of the EU Maintenance Regulation states that EU Member States only have jurisdiction for maintenance when either party is habitually resident in that country or when ancillary to divorce proceedings, provided jurisdiction for the divorce proceedings is not based exclusively on sole domicile (or sole nationality). This means that for cases where sole domicile is relied on (i.e. when other tests for jurisdiction cannot be satisfied in the UK or any other Member State, or where there are connections with countries outside of the European Union), the United Kingdom (as with the other member states) cannot make needs-based maintenance awards. This is a deeply unsatisfying position, and an example where it can be said that EU family law overreaches English law. Post-Brexit, this restriction will fall away. However, before UK practitioners rejoice, this in itself will not be without problems. An order based on sole domicile may not be recognised or enforceable in some of the remaining EU Member States, and pleading multiple grounds (if available) may be necessary.

Post-Brexit, the United Kingdom will apply the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (the “2007 Hague Convention”) to maintenance issues, having now independently ratified it, and it will apply immediately on Exit Day. The 2007 Hague Convention does not, however, contain a code of jurisdiction in the way the Maintenance Regulation does. Further, the Brexit SI does not contain express rules for jurisdiction in respect of maintenance claims. Whilst it replaces the jurisdiction provisions for Brussels IIa, it does not do the same for the Maintenance Regulation. Prior to Brussels IIa, the position was that maintenance jurisdiction would follow divorce jurisdiction. Presumably, in the absence of jurisdiction provision in the Brexit SI, that is the intended position post-Brexit (as in the absence of replacement domestic law we will revert back to the pre-Brexit law). How that will be viewed by the remaining EU Member States remains to be seen. It will be important (in fact, essential) to consider the jurisdiction rules in any remaining Member State where enforcement might be necessary as early as possible.

A concern amongst many UK practitioners was, and remains, the loss of reciprocity and uniformity for UK-EU cases. Whilst use of the 2007 Hague Convention deals with that to some extent, as considered above, only 12 of the 27 remaining EU Members States are signatories to the Convention. For those Member States that are not, as with non-EU states, it will be necessary to consider that Member State’s domestic legislation or codes. Even for those Member States who are contracted states, it will be necessary to check if that Member State has made any reservations or declarations in respect of the 2007 Hague Convention.

A positive change for the United Kingdom in respect of maintenance post-Brexit is the amendment to the Brexit SI set out in “The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) (No. 2) Regulations 2019 No. 836”. As a result of the hard work of Resolution, (in particular, Eleri Jones of the Resolution Brexit Working Group), England and Wales’ domestic Children Act 1989 will deal with jurisdiction for child maintenance claims under Schedule 1 of the Children Act 1989 in the same manner as the Maintenance Regulation. Unlike the Maintenance Regulation, the Children Act 1989 will apply to worldwide cases, not just intra-EU cases.

3. Pensions

Disappointingly for English and Welsh practitioners, the Brexit SI makes no provision similar to Article 7 of the Maintenance Regulation (forum necessitates), which will impact the ability to seek English pension sharing orders after a foreign pension sharing order or agreement. These orders currently occur under Part III of the Matrimonial and Family Proceedings Act 1984, and, for those cases where there is no jurisdiction available (because the parties do not have an ongoing connection to England and Wales, save for the English pension), Article 7 provides a route to make that claim. As there is no similar provision in the Brexit SI, any parties without a connection to England (but for an English pension) will be unable to make a Part III claim for an English pension sharing order after a foreign order or agreement. Whilst this will only affect a small number of cases, it is nonetheless a disappointment. For practitioners dealing with cases with that scenario, any application under Part III relying on Article 7 will need to be made before Exit Day.

4. Children Proceedings, Including Abduction

After Exit Day, the UK will no longer apply the provisions of Brussels IIa to children cases, falling back on the 1996 Hague Convention on Parental Responsibility and Protection of Children (the “1996 Hague Convention”). A number of changes will arise as a result of this, some examples of which are considered here.

In losing Brussels IIa, the UK will lose the benefit of Articles 11(6) to (8) for cases of child abduction, which are not replicated in the 1996 Hague Convention. These provisions enable applicants a second attempt at return proceedings after Hague proceedings have concluded and will no longer be available to UK-EU cases. The logic behind these provisions was to act as a deterrent to would-be child abductors.

Brussels IIa expressly requires expedition of cases in child abduction, with cases to be determined within six weeks, save for in exceptional circumstances. No such provision exists in the 1996 Hague Convention. That being said, it is hoped that there will still be a willingness amongst the judiciary to deal with such cases swiftly, regardless of the jurisdictions in question, as in most cases this is clearly in the best interests of the child.

Legal aid is not available for recognition and enforcement of orders under the 1996 Hague Convention, as it is under Brussels IIa and, disappointingly, it is understood this disparity will continue after Exit Day.

The United Kingdom’s exit from the European Union means it will not benefit from the enhanced provisions provided in the recast of Brussels IIa when they start to apply in 2021, such as: the complete abolition of exequatur for all decisions in matters of parental responsibility (saving parties time and money whenever a decision needs to circulate from one Member State to another); clearer rules on the opportunity for the child to express his/her views with the introduction of an obligation to give the child a genuine and effective opportunity to express his/her views; and the harmonisation of certain rules for the enforcement procedure (Including enabling Article 20 urgent protective measures to be capable of recognition and enforcement in other EU Member States. This will not assist any UK orders as the recast will not apply to the United Kingdom.) There is a view that the recast will add real value, so it is disappointing that the United Kingdom will not benefit from these, although it could seek to unilaterally adopt these terms. Should that happen there is, again, a question of reciprocity, as the remaining EU Member States will be under no obligation to apply these terms to UK-EU cases. However, some aspects of the recast are not reliant on reciprocity, such as the time limit for dealing with cases, and such term has a clear benefit to parties and children.

In respect of matters of parental responsibility, Article 9 of Brussels IIa provides that, within the first three months following a child’s move to another Member State, the child’s habitual residence will remain in the “left behind” state. Whilst this is a small window, it gives the “left behind” parent some reassurances that in the event of an issue arising within that window, the court of the former Member State could deal with any issues and modify the order. This provision is not provided for in the 1996 Hague Convention, so as matters stand, in the event of a no-deal Brexit, this small but helpful window will fall away for any UK-EU cases.

Currently, English contact orders are automatically recognisable and enforceable in Member States, providing the appropriate certificate is annexed to the Order. After Exit Day, English contact orders will face a two-tier process with contracting states to the 1996 Hague Convention; firstly, recognition and secondly, enforcement. Whilst this is not an absolute bar, it poses the threat of higher costs for litigants and greater delays. Obtaining mirror orders, at the earliest opportunity, could alleviate any enforcement concerns, although at greater financial cost to clients.

5. The Approach of the Remaining EU Member States

On 18 January 2019, the European Commission produced guidance for Member States, dealing with jurisdiction, recognition and enforcement in civil justice and private children law. Whilst it is guidance only, it states that an EU Member State will not give effect to a UK order made before Exit Day unless the required registration process has been concluded before Exit Day. More generally, unless there is overriding EU guidance or agreement in place, the position taken on UK orders and decisions will be down to each individual Member State, as per their national law. The position could differ between different Member States and, again, parallel advice in the country in question will be crucial.

6. Anglo–English Issues Arising on Brexit

England & Wales and Scotland, as two independent jurisdictions, do not have complete uniformity in their domestic laws. Whilst any differences post-Brexit are likely to apply in a limited number of cases, for the parties to those cases, the differences are very important as the two jurisdictions have very different rules on, for example, maintenance provisions to spouses on divorce.

7. Retraining and Test Cases

As matters stand, post-Brexit the practice of UK-based practitioners could change dramatically in some aspects of family law and UK practitioners will need to take the responsibility of ensuring their knowledge and practices are up to date to best serve their clients. Brussels IIa, for example, came into force on 1 August 2004, and has applied from 1 March 2005; almost 15 years ago. That is almost 15 years of case law that has been based on a Regulation that will no longer apply. Reviewing the UK’s case law prior to Brussels IIa is likely to be of limited value; the world has changed dramatically since then and families are more international than ever before. Around 900,000 UK citizens are long-term residents of other EU countries.i Likewise, there are estimated to be 3.7 million EU citizens living in the United Kingdom.ii Many of these individuals make up families who are not confined by borders. There is no official data setting out how many families in the United Kingdom comprise of couples with different international origins, but most UK family law practitioners would confirm that family law cases here have become increasingly international, both in respect of the nationalities of the individuals, and the location of assets and homes.

Post-Brexit reported cases are going to be very important for practitioners, particularly during the first few years after Exit Day, if not in the best interest of clients in terms of emotional and financial cost. Regrettably, the United Kingdom will no longer have the benefit of the European Court of Justice, and the assistance offered there in interpreting law and practice. At present, there is no proposal for a replacement body.

8. Conclusion

Having now had three years of unsuccessful negotiations, it could be said that the United Kingdom seriously underestimated the scale of the task at hand. The negotiations for Brexit are far more difficult and wide-reaching than perhaps anybody had contemplated prior to the referendum. Calls for a revocation of Article 50 are frequently made, but in the current political landscape, it seems unlikely to happen. So far as practitioners are concerned, Brexit is happening and future-proofing cases to the extent possible, with parallel advice, mirror orders and expectation management with clients is important. Ironically, at a time where we seek to leave the European Union, our relationships with practitioners in Member States will become ever more important as we move into a new era of family law.